In a progressive democracy, as we claim to be, a necessary corollary of the civic freedom of access to information that we explored last week is the freedom or right to use that information to assess for oneself and to seek to persuade others of one’s assessment of which are the optimal political choices on offer.
That freedom is, in other words, the freedom of political speech or, as the Constitution would have it, the right to freedom of expression that includes expressly “the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with one’s correspondence and other means of communication”. And while, of course, this freedom is not absolute, any state restriction, especially one on political speech, should be subjected to the closest judicial scrutiny for moral and constitutional legitimacy.
One restriction on this freedom that has been accepted over time has been that the law of the law pertaining to defamation. Indeed, this is also constitutionally recognized in that it is provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with the guaranteed freedom to the extent that the provision is “reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons” (emphasis added).
Historically, in the region and elsewhere, that the law of defamation constitutes an exception to the right of free speech rather than creates a constitutional guarantee of an inviolable reputation has seemingly been forgotten in the comparative inertia of state legislatures to reform the defamation law to enable a greater freedom of expression and the reluctance, until relatively recently, of the judiciary to be activist in the protection of freedom of expression; phenomena that have opened an avenue for public officials to avidly seek protection from, and redress for, any adverse comment on themselves.
A cursory examination of the regional Law Reports should reveal the many occasions on which the names of those involved in politics and public life appear as successful claimants when the content of a modern civic entitlement of political communication should entail discussion of the conduct, policies and fitness for office of members of political parties in general and of the governing administration in particular, public officers and other “political” figures such as the leaders of workers’ and employers’ organizations, judges and political commentators so long as the defendant publisher can establish that he, she or it was unaware of the falsity of the imputation.
The American legal scholar, Alan Dershowitz has weighed in on the nature of freedom of speech, According to him, “freedom of speech means freedom for those (whom) you despise, and freedom to express the most despicable views, It also means that the government cannot pick and choose which expressions to authorize and which to prevent”.
This compels my identification an increased freedom of political speech as an essential provision of any modern day political compact.
Of course, in order for this agreed freedom to be effective, the citizens must be prepared to avail themselves of it . There appears to be a pervasive sentiment that in Barbados, for one, the defamation laws provide a substantial restriction on political expression, frequently expressed in the cliché description of the “libel” (defamation) laws as archaic. I an prepared to concede this point in two regards, first, that there still exists here the possibility of a prosecution for criminal libel –an offence that at least three regional jurisdictions have recently sought to abolish and second, that it is still possible to defame a dead person In Barbados, even though in that latter circumstance the remedies and class of potential claimants are limited..
Beyond this however, apart from Antigua & Barbuda (2015) and Jamaica (2013) that have reformed their defamation laws, Barbadians enjoy one of the most liberal defamation statutes in the region and perhaps in the common law world.
Nonetheless, as I have often stated in this space and elsewhere, freedom of expression is not simply a matter of law, but also one of national culture and attitudes. Political communication that may avoid censure as calypso lyrics in Trinidad & Tobago suffers a distinctly different fate locally where an earlier attempt to argue that a similar culture should exist in this jurisdiction was met with the injunction that this would require statutory reform after appropriate lobbying of the authorities. Further, the general reluctance of the media aggressively to contest defamation claims instead of quickly settling these matters with a potential claimant has also contributed to a degree of stasis in the development in the common law in this area.
To a substantial extent, the local freedom of expression has mushroomed in recent times with the anonymity afforded by the advent of the blogs and the provision of avenues to the general public for commentary on reports by some sections of the online media. This has opened these contributors to charges of cowardice and worse from those who regard the anonymous contribution as being a worthless abdication of the freedom of expression rather than an exercise of it. This dispute may be more metaphysical than anything else.
While it may be true that the anonymous or pseudonymous contributor may express sentiments that he or she might not have done under his or her true name, if we should hew to the constitutional definition of freedom of expression as “the freedom to hold opinions without interference, freedom to receive ideas and information without interference, and freedom to communicate ideas and information without interference”, then the anonymous exercise of these freedoms should scarcely detract from their civic and political value.